JUDGMENT
B. Mukerji, J.
1. This petition in revision has been directed against an order made by Sri A. C. Bansal, Civil and Sessions Judge of Lucknow, who was appointed a special Judge under the Criminal Law Amendment Act of 1952 (Act No. XLVI of 1952).
2. By a notification No. 3854 (ii)/VI-767/57 dated 13-12-1957, the State Government made the following order :
“In partial modification of notification No. 1953/ VI-812-52, dated 18-9-1952, and in exercise of the powers conferred by Sub-section (1) of Section 6 of the Criminal Law Amendment Act, 1952 (Act No. XLVI of 1952), read with Section 7 (3) therefore the Governor of Uttar Pradesh is pleased to appoint Sri A. C. Bansal, Civil and Sessions Judge, Lucknow to
be a Special Judge for the trial of Lucknow Jail Escape case (case No. 5/57) State v. Abdul Rahman and 19 others under Sections 120B, 216, 221, 222, 223, 224, 225, 161, 165 and 165A, Indian Penal Code, Section 5 (2) of the Prevention of Corruption Act, 1947 (Act II of 1947), Section 42 Prisons Act, 1894 and under Section 109/34, Indian Penal ‘Code.”
Thereafter, the State Government made another notification dated 3-1-1958, and this was notification No, 5(ii)/VI-767-1957, which stated as follows :
“In continuation of notification No. 3854(ii)/VI-767-57 dated 13-12-1957 and in exercise of the powers conferred by Sub-section (2) of Section 9 of the Code of Criminal Procedure, 1898 (Act V of 1898), the Governor is pleased to direct that Sri A. C. Bansal, Civil and Sessions Judge, Lucknow, shall hold his Court inside the Model Prison, Lucknow, for the trial of the Lucknow Jail Escape case (case No. 5/57), State v. Abdul Rahman and others under Sections 120B, 216, 221, 222, 223, 224, 225, 161, 165 and 165A, I. P. C., Section 5 (2) of the Prevention of Corruption Act, 1947 (Act II of 1947), Section 42, Prisons Act, 1894 and under Section 109/34, Indian Penal Code.”
In view of the afore-quoted two notifications, Mr. Bansal assumed that he was a Special Judge who had been properly appointed under the powers conferred on the State Government under Section 6 of the Criminal Law Amendment Act. Before him, therefore, objections seem to have been taken on behalf of some of the prisoners that the notification dated 3-1-1958, namely notification No. 5(ii)/VI-767-1957 was ultra vires the powers of the State Government inasmuch! as the State Government had no power to direct Mr. Bansal to hold his Court in the Model Prison in order to try the Lucknow Jail Escape Case, namely gase No. 5/57, State v. Abdul Rahman and others.
It was contended on behalf of the prisoners that by this notification they had been discriminated and further that by holding the trial in the Model Prison the prisoners were going to be prejudiced in their defence if in nothing else#in this that they will be unable to have proper legal assistance because a Senior Counsel would be unwilling to go and appear on their behalf in jail. It was also contended on their behalf that the trial in jail would be for other reasons also prejudicial to their interests.
The learned Judge went into these questions and came to the conclusion that the notification of 3-1-1958, whereby the State Government had directed him to hold the trial of the Lucknow Jail Escape Case, i.e. State v. Abdul Rahman and others, inside the Model Prison, Lucknow, was beyond the powers conferred on the State Government under Section 9 (2) of the Code of Criminal Procedure. The learned Judge further expressed the opinion that the notification was discriminatory in its character and therefore was in violation of the constitutional guarantee contained in Article 14 of the Constitution. The learned Judge also expressed his views on the question of the prejudice that will entail to the prisoners if the trial were held inside the Model Prison at Lucknow, On a consideration of the entire matter before him he came to the conclusion that the notification in question was “bad in law and ultra vires.”
3. Feeling aggrieved by the decision of the Special Judge which was given by him on 10-1-1958, the State Government has come up to this Court in revision. On behalf of the State Sri Shankar Sahai Saksena contended that the State Government had the authority to make the notification that they did under the provisions of Section 9 (2) of the Code of Criminal Procedure. He contended that there was no discrimination and further that there was no question of any prejudice to the accused in case the trial was held in jail. Mr. Saksena contended that no accused had the fundamental right of being tried in any particular place, but in making that submission he overlooked the fact that it was not the prisoners’ contention that they had any fundamental right to be tried in any particular case, for what the prisoners Contended was that they should not be tried differently from those situated under similar circumstances would have been tried.
The points on which the Court below decided to hold the impugned notification bad and unenforceable, in our opinion need not be gone into at this stage, for we find on a careful scrutiny of the earlier notification by which Sri A. C. Bansal was appointed a Special Judge, under the provisions of the Criminal Law Amendment Act was itself bad, so that if the appointment of Sri Bansal as a Special Judge was bad in law, then the question as to where Sri Bansal was to function for the purpose of deciding the case for which he had been appointed a Special Judge did not, in our opinion, arise for determination.
4. Sri Bansal’s appointment as a Special Judge was made, as we have already indicated, under the provisions of Section 6 (1) of the Criminal Law Amendment Act, Section 6 (1) of the Criminal Law Amendment Act is in these words :
“The State Government may, by notification in the Official Gazette, appoint as many Special Judges as may be necessary for such “area or areas” as may he specified in the notification to try the following offences, namely :
(It is not necessary to quote the other portion of this Sub-section because for our purpose it is not relevant).”
From the quotation of the relevant provision of Section 6 it would be obvious that the appointment of a Special Judge has to be in respect of an area or areas. The appointment is not to be in respect of the trial of any particular case or in respect of the trial of a group of cases.
5. The notification by which Sri Bansal’s appointment was made has already been quoted by us. An examination of that notification would immediately reveal the fact that the appointment of Sri Bansal has not been made in respect of any area or areas, for there is in the notification of 13-12-1957, no reference whatsoever to any area or areas in which or over which the jurisdiction of Sri Bansal as a Special Judge was to be operative. By the notification Sri Bansal was appointed to try one particular case, i.e. Case No, 5/57, State v. Abdul Rahman and 19 others.
The notification does not even remotely connect the trial of the case to any area or areas. Learned Counsel appearing on behalf of the State, Mr. Saksena, very candidly confessed that there was this clear omission in the notification. He also very fairly and very candidly admitted that this omission in the notification was not a mere omission of form but was an omission that went to the root of the Court’s jurisdiction because a Special Judge could not be appointed except in relation to an area or areas.
In view of what we have said above it is perfectly plain to us that the purported appointment of Sri Bansal as a Special Judge under Section 6 (a) of the Criminal Law Amendment Act of 1952 was on invalid appointment and that as such Sri Bansal could not function as a Special Judge in relation to the case which he had been asked to decide, i.e. Case No. 5/57. We accordingly hold that Sri Bansal’s appointment was invalid and as such the second notification by which Sri Bansal has been asked to hold his Court in side the Model Prison of Lucknow, viz, the notification of 3-1-1958, cannot take effect.
6. Counsel for the prisoners wanted us to express our opinion in regard to the vires of the second notification namely the notification of 3-1-1958. We do not think we can properly do so for it is a well recognised principle that Courts do not pronounce upon the vires of an Act or of a notification unless and until it is absolutely essential for giving relief to the party seeking it. The relief which the party sought in this case, namely that the trial be not held in jail, has by our decision obtained that relief because of the fact that the person who was to hold the trial in jail cannot, in the view that we have taken of his appointment, function as a Special Judge.
7. Since, after hearing the Counsel for the parties we were inclined to make an order which was not prejudicial to those accused who were unrepresented before us or were not present in person before us, we considered it undesirable to send for them and hear them.
8. For the reasons given above, we dismiss this application in revision and direct that Sri Bansal shall not function as a Special Judge for the trial of case No. 5/57, State v. Abdul Rahman and others under the various sections of the Indian Penal Code and other Acts under notification No. 3854(ii)/VI-767/57 dated 13-12-1957.
